Court: Don't be wrong on 'Bong'

Five years ago, Joseph Frederick, in what was surely one of the most controversial senior pranks in history, held up a banner bearing the slogan "Bong Hits 4 Jesus" as a TV crew tracking the Olympic torch passed by his high school in Juneau, Alaska. But Mr. Frederick never made it on TV, as Principal Deborah Morse crossed the street to the site where students had been released to watch the torch, confiscated Mr. Frederick's sign and suspended him for 10 days.

Though this incident may seem inane, what began as a joke could permanently weaken students' first amendment rights unless the court takes action to uphold the tenets of student free expression put forth in the 1969 Tinker v. Des Moines School District case.

The Supreme Court is now faced with what is potentially the most important student free speech case in 19 years. Any decision by the court must include a ruling on whether or not Mr. Frederick's actions were carried out during a school-sponsored activity. If the high court sustains the rulings of the two lower courts, the demonstration will be treated as a field trip and therefore subject to the rules of free speech in a school setting.

However, if the court reverses and holds that Mr. Frederick did not display the poster in a school setting, the decision would set an oppressive standard in which student speech can be restricted even when the student is not at school. This, in turn, could muzzle student activism without materially contributing to the safety and security of the learning environment. As such, it would be prudent for the justices to rule with the lower courts on the issue.

The justices will also have to consider whether or not administrators should be allowed to restrict speech on two levels — speech that violates the school's mission and speech that promotes illegal activity. Ms. Morse claims that she removed the banner because it advocated an illegal activity that was contrary to the anti-drug policy of the school. Allowing administrators to restrict free speech on either level would give them too much power to stifle student speech.

Because the Tinker decision grants administrators the right to censor speech that causes a "substantial disruption" to students, the school mission provision is mostly irrelevant because disruptions tend to counteract the basic rules of school behavior. Giving administrators free reign to limit speech that contradicts a school's mission would mean administrators could revise school mission statements to prevent any types of speech.

Even more disturbing, a ruling in favor of limiting speech concerning illegal activity could criminalize student protest and civil disobedience. Mr. Frederick's attorneys have argued that his reference to "bong hits" was a legitimate message of protest in Alaska at the time because of controversy over a state ruling that the state constitution's right to privacy clause gave adults the right to possess small quantities of marijuana. Ruling that Ms. Morse was right to censor this protest sets a dangerous precedent that would have allowed administrators to put down anti-segregation demonstrations in the 1960s. Surely, students should be allowed to question the policies of their school and government without fear of punishment.

Though students have the most to lose in this case, the ruling could make administrators like Ms. Morse liable for violating constitutional rights despite acting in what they thought was a responsible manner. If even experienced Supreme Court justices could not easily determine whether or not Mr. Frederick's sign was protected speech, a principal hardly as familiar with legal precedent should not be held accountable for making the most prudent decision she could at the time. Ms. Morse was wrong to take away the sign, but she should still be afforded qualified immunity. Otherwise, administrators nationwide could be barraged with petty lawsuits as a result of their split-second judgments.

The court should uphold the Tinker standard — students should not "shed their constitutional rights to freedom of speech or expression at the schoolhouse gate." Students nationwide should hope that Mr. Frederick's "Bong Hits 4 Jesus" prank does not forever restrict first amendment rights. The best decision for the court would be to rule in Mr. Frederick's favor but protect administrators faced with difficult decisions by upholding their right to immunity. Otherwise, the "schoolhouse gate" may transform into a barrier for student speech, and thoughtful, individual political protest will be restricted to those old enough to vote.